Monday, June 22, 2009

The following is in honor of the reprinting of the Berlin edition of the Halachos Gedolos [Behag] published by Rav Ezriel Hildesheimer between the years 1888-1892. This reprint of the important Gaonic work, which is a recension of the Vatican MS (Biblioteca Apostolica ebr. 142), differs from the more common published editions which are based on the first printing of the Behag in Venice, 1548. There is an additional edition published between 1972-1987 in Yerushalayim by Rav Ezriel Hildesheimer (a grandson of the Rav Ezriel Hildesheimer who published the Berlin edition). This Behag is a recension of the Milano MS (Biblioteca Ambrosiana C 116 Sup) and has many similarities to the Berlin edition.

Tosfos (Eruvin 6a) reveals that the criterion of shishim ribo cited by Rashi was already mentioned in the Behag. Additionally, the following Rishonim also mention that the source for shishim ribo is the Behag: Ramban (Eruvin 59a), Shitas Hamyuchos LaRan (Shabbos 6b), Tosfas Rosh (Eruvin 6a), and Maharam MeRotenberg (Piskei Eruvin, ois 9). However, the Mishkenos Yaakov (O.C. siman 121) stated that our Behag does not mention the criterion of shishim ribo at all (see also the Bi’ur Halachah, 345:7 who follows the Mishkenos Yaakov in this regards). Moreover, he continues, since there are Rishonim such as the Ritva and the Rivash who oppose the criterion of shishim ribo and they only cite Rashi as the source of the criterion and not the Behag ― whom they would not have easily rejected l’halachah[1] ― these Rishonim must not have found the criterion mentioned in the Behag, as well.

The facsimile above is of the Berlin recension of the Halachos Gedolos from the Vatican MS (Biblioteca Apostolica ebr. 142) which contains the passage regarding the criterion of shishim ribo.

Additionally, I would like to point out that there is an unpublished manuscript of the Behag that mentions the criterion of shishim ribo, as well. The Vatican MS (Biblioteca Apostolica ebr. 304; see below for a facsimile of this passage) states והכי אמרי משמיה דרב יהודה אלוף דמנהר פקוד דבצרה ... רשות הרבים דוכתא דדשין ליה שית מאה אלפי גברי ביומא כדגלי מדבר, and these are almost the exact words that we find in the Sefer Ha’itim (ois 209).[4]

The facsimile above is of the Halachos Gedolos from the Vatican MS (Biblioteca Apostolica ebr. 304) containing the passage referring to the criterion of shishim ribo which is similar to the passage mentioned in the Sefer Ha’itim (ois 209).

There was a famous debate between the Mishkenos Yaakov (O.C. 120) and the Bais Ephraim (O.C. 26) regarding the tally of Rishonim who pasken whether or not shishim ribo is a fundament of a reshus harabbim. The Mishkenos Yaakov sent a lengthy teshuvah to the Bais Ephraim arguing that the Taz (345:6) and Magen Avraham (345:7) are incorrect in their assumption that most Rishonim maintain that shishim ribo is a criterion of reshus harabbim, since most Rishonim uphold otherwise. The Mishkenos Yaakov argued that there were only eight Rishonim who maintained that shishim ribo is a criterion of a reshus harabbim, and that there were approximately 14 who upheld otherwise. The Bais Ephraim replied that one cannot argue against the accepted minhag established by the Chachmei Tzarfas and Ashkenaz and that he disagrees with the Mishkenos Yaakov’s tally of Rishonim. The Bais Ephraim goes on to argue his case and proves that the Taz and Magen Avraham are correct in their belief that most Rishonim maintain that shishim ribo is a criterion of a reshus harabbim.

The Aruch HaShulchan (345:17) and the Misnhnah Berurah (Bi’ur Halachah 345) cite the Mishkenos Yaakov’s count without mentioning that the Bais Ephraim[5] disagreed with some Rishonim on the list.[6] The Aruch HaShulchan adds that some of the Rishonim whom the Mishkenos Yaakov cited were not yet published in the times of the Taz and Magen Avraham, and therefore, they didn’t have the actual count of Rishonim who pasken against the criterion of shishim ribo.

Therefore, I set out to count the actual number of Gaonim and Rishonim, including those published recently, who clearly pasken shishim ribo is a criterion of a reshus harabbim and those who explicitly maintain otherwise.

Therefore, since the overwhelming majority of Rishonim and several Gaonim maintain that shishim ribo is a criterion of reshus harabbim, there is no doubt that the Mishkenos Yaakov and the Misnhnah Berurah would agree that shishim ribo is an accepted fundament that all can rely on.
_____________________________[1] וכבר כתב התוס' (חולין מד ע"א ד"ה כדי תפיסת היד) שדברי הבה"ג הם דברי קבלה ויש לסמוך עליהם, וכן כתב הרא"ש בשם הראב"ד (ברכות פ"ד אות יד), ובש"ך (יו"ד סי' כה ס"ק ב) וז"ל וכמה מצינו שהתוס' וכל הפוסקים חששו לדברי בה"ג אפילו היכא דלא מסתברא טעמיה, אפילו להקל, מפני שכל דבריו דברי קבלה".[2] Some refer to this MS as the Behag Aspamia [Spain] which is mentioned in the Rishonim (MiKadmoniyos HaYehudim, p. 399-402). This, however, is probably incorrect as has been detailed by Rav Ezriel Hildesheimer (Behag,Yerushalayim, vol. 1 p. 22-24).[3] Rav Kasher cites a fifth Gaon mentioned in the Eshkol in Hilchos Eruvin (ois 64). However, this passage is only in Rav Auerbach’s edition of the Eshkol which has been proven to be a forgery so I omitted it.
In the anti-eruvkuntres Kerem Beyavnah (number 5) Rav Chaim Dov-Ber Gulevsky wrote a rambling screed against shitas Rashi. One of his objectives was to negate the fact that even prior to Rashi there were Gaonim who upheld that shishim ribo is a criterion of a reshus harabbim. Rav Gulevsky’s most absurd claim (pp. 265-266) is that since the Berlin edition of the Behag which contains the passage regarding shishim ribo was published by Maskilim (Chevrah Meketzei Nerdamim), we cannot rely on the wording in this edition of the Behag. The absolute futility of this argument is indicative as to how far the anti-eruv group would go to negate city eruvin (I guess that his argument is that even though Rav Esriel Hildesheimer was the editor of this edition, nevertheless, the publishers were not trustworthy). First of all, the Sefer Ha’itim (ois 208) quotes this passage from the Behag and it is very similar to the Berlin edition. Second of all, I have included a facsimile of the manuscript containing this passage that the Berlin edition was based on, and clearly there was no redacting whatsoever. The only one who can be accused of redacting would be the author of the article.[4] There is much uncertainty regarding the author of this quote רב יהודה ריש כלא דמנהר פקוד מבוצרה. Shmuel Poznanski writes (JQR, N.S. vol. 3 number 3, p. 403) that this is not the same רב יהודאי גאון that the Behag/Halachos Pesukos was based on (see Nachman Danzig, Mavo LeSefer Halachos Pesukos, Perek 5, n59, n62).[5] The poskim have already called attention to the fact that the Mishnah Berurah had obviously not seen the Bais Ephraim (Toldos Shmuel, 3:81:7, 3:86:8; Bais Av, 2:5:2; Divrei Yatziv, 2:173:1, and Even Yisroel, 8:36). We can add that this is evident from the Mishnah Berurah himself since he states that he did not possess the sefer Bais Ephraim (Bi’ur Halachah, 208:9, s.v. Eino M’Vorech).[6] However, the Misnhnah Berurah obviously didn’t agree with three of the Rishonim on the Mishkenos Yaakov’s list – the Rif, Riaz and Ra’avin – since he omitted them from his own list.[7] The Bais Ephraim and the Mishkenos Yaakov had a major debate regarding some Rishonim, and in my opinion, the Bais Ephraim is correct (see Minchah Areivah, siman 7, for a full treatment of this subject). Therefore, I am not listing those Rishonim whose opinion is a matter of disagreement. [For example, since Rabeinu Tam did not state that he disagrees with shitasRashi only that he had a question regarding the criterion it is not proof that he opposed it. Moreover, there is evidence from other statements of Rabeinu Tam that he supported the criterion. However, if a Rishon states that shitas Rashi is not a central criterion, I added him to the list of those opposing the fundament of shishim ribo even if I have an argument that would demonstrate that the Rishon supported the criterion.] This is the reason why I did not count some of the Rishonim listed in the Bi’ur Halachah, 345:7, which just follows the Mishkenos Yaakov. However, I will add to the list the Rishonim who oppose the criterion but were only published at a later date than the Bi’ur Halachah.
I should mention that while Rabeinu Peretz in his chidushim (Eruvin 6a) states that we do not follow the criterion of shishim ribo in Rabeinu Peretz’s hagahos on the Smak (where he always articulates when he disagrees), he does not argue when the Smak supports the criterion of shishim ribo. Additionally, there is a passage cited in the Hagahos Ashri (Eruvin Perek 1, siman 8) from the Hagahos Smak that supports shishim ribo. Therefore, it is possible that Rabeinu Peretz does not disagree with shitas Rashi in his chidushim, but only that he has difficulties with it (just like the Bais Ephraim argues regarding Rabeinu Tam). Consequentially, I do not include Rabeinu Peretz as opposing the criterion of shishim ribo.[8] One of the klalim in the Rambam is that he only set forth issues in the Yad that were clearly delineated in Shas (see Bais Yosef, Y.D. 196:2; Mishneh L’Melech, Ma’aseh haKorbanos, 18; Prei Chadash, Y.D. 83:7; Bach, Y.D. 48:8; see also Sedei Chemed, Klalei HaPoskim, 3:5, 5:23). As some of the Rishonim who argue against the criterion of shishim ribo state, there is no mention of the fundament in Shas (see Shishim Ribo – A Mystery Solved). I would therefore suggest that this would be the underlying rationale why the Rambam did not mention the criterion of shishim ribo and that its omission is not proof that he did not subscribe to this fundament of a reshus harabbim. Nevertheless, the fact is there are Rishonim who maintain that the Rambam opposed the criterion of shishim ribo because of the fact that he failed to mention it (Ritva, Eruvin 59a, Magid Mishnah, Shabbos 14:1 and Rivash, siman 405). However, I should add that the Maharashdam (O.C. siman 4), Divrei Yirmiyahu (Hilchos Shabbos, Perek 14) and the Chasam Sofer (Chidushim Shabbos, 87a) do presume that the Rambam accepts shishim ribo as a criterion.[9] The Bais Ephraim notes that the Ramban in Eruvin (59a) admits that the criterion of shishim ribo is mentioned in the Behag, and hence the Ramban declares that it is “taluy b’elanos gedolos.” Consequently, when the Ramban finds difficulty with the criterion of shishim ribo, it only proves that he would rather not rely on it. However, he agrees it has deep seated support because of the Behag, and that is why the world relies on the criterion.[10] I would argue that there is no proof from the Rashba’s teshuvah (siman 722) that he opposed the criterion of shishim ribo (since even if one supported the criterion of shishim ribo there are scenarios where a sratya and a platya are classified as a reshus harabbim even without shishim ribo traversing therein). However, there are Rishonim who argue that the Rashba did not support the criterion (Magid Mishnah, Shabbos 14:1 and Rivash, siman 405). I should mention, though, that the Taz (345:6) questioned what the Rashba actually maintained.[11] It is important to note that the Ritva in Shabbos 6a, and Eruvin 6a, 22a, refers to and expounds on shitas Rashi without arguing at all. Only in Eruvin 59a does he express that most Gaonim do not accept the criterion of shishim ribo.
Professor Yisrael M. Ta-Shma (Halachah, Minhag, U’Metzius BeAshkenaz: 1000-1350, p. 144) argues that the fact that the Ritva writes that the majority of Gaonim do not support shishim ribo is proof that most Gaonim disagreed with the Behag. However, besides for the probability that when the Ritva mentions Gaonim he is referring to the Ramban and in this case possibly the Rashbah (see Mosad Rav Kook edition of the Ritva, Eruvin 59a, n286; 67b, n411 and Torah Shelemah, vol. 15, p. 174), I believe that his assumption is totally incorrect. The fact is that we do not know of even one Gaon who stated that he was opposed to the criterion of shishim ribo. This follows why the Magid Mishnah (Shabbos 14:1) states that there are some Gaonim and Achronim (he is referring to the Achronim of his era which we classify today as Rishonim) who uphold the criterion of shishim ribo but then only cites Rishonim and does not mention any Gaonim who oppose the criterion. This leads me to believe that the Magid Mishnah and the Ritva did not know of any Gaonim who opposed the criterion of shishim ribo. [What we do know and even Professor Ta-Shma admitted to was that there are, besides for the Behag, an additional three Gaonim who subscribe to the criterion of shishim ribo (Rav Amram, Sar Shalom, and the unnamed Gaon mentioned in the Sefer Ha’itim).] Moreover, it is doubtful that the Ritva was referring to the period that we refer to today as Gaonim since this demarcation was established at a later date (Torah Shelemah, vol. 15, p. 174). The term Gaonim at that time included the period that we now refer to as [the early] Rishonim. I believe that Professor Ta-Shma got this all wrong.
Additionally, Professor Ta-Shma is probably incorrect that since all the Gaonim who upheld the fundament of shishim ribo were from Sura, the Gaonim from Pumbedisa did not accept the criterion. In fact, [Mar] Rav Paltoi Gaon was from Pumbedisa, and he states (Halachos Pesukos Min HaGaonim, siman 144) that there is no reshus harabbim today at all. [While one can argue that Rav Paltoi Gaon meant that there is no reshus harabbim today because the streets were not sixteen amos wide, it is improbable that this is what he was referring to. Even though the Kol Bo (siman 31) states that there is no reshus harabbim today because the streets were not sixteen amos wide, and the Ritva (Eruvin 59a) also declares that there are no streets in his country which are sixteen amos wide, the Ramban (Shabbos 57a), however clearly states that there were streets that were sixteen amos wide in his times. Moreover, from the Ritva’s words we can derive that this was only a local phenomenon. Additionally, the areas where the overwhelming majority of Gaonim and Rishonim resided clearly contained roads that were wider than sixteen amos since they had to rely on the criterion of shishim ribo. Consequentially, when a Gaon or Rishon states that today there is no reshus harabbim, we would have to assume he is not referring to the streets being less than sixteen amos wide but only that they do not meet the criterion of shishim ribo.][12] I should mention that the Taz (345:6) questioned what the Magid Mishnah actually maintained. However, I think that from the words of the Magid Mishnah it is clear that he does not support the criterion of shishim ribo at all.[13] There is some uncertainty as to who is the author of this passage which was signed simply as Eliezer. The Bais Ephraim proves that it is not Rav Eliezer of Metz. It probably was Rav Eliezer of Lundresh.